On a recent episode of Amicus, Dahlia Lithwick spoke with professor Lee Epstein, who studies judicial behavior using empirical legal research, about the perceived hyperpartisanship on display at the Supreme Court last term. They dig into the data to better understand what’s really going on at the court and why our prevailing narratives might be flawed. A portion of their conversation, which has been edited and condensed for a clarity, is transcribed below.
Dahlia Lithwick: This past week, as I read the term previews, and they were all laced with these really political claims about poll numbers and wobbling public legitimacy, and this judicial charm offensive gone horribly wrong, all I could think to myself was: What would Lee Epstein think? This is shocking to SCOTUS watchers, but it’s the water Lee swims in—politics, judicial behavior data, all the way down. So, Lee, welcome to the “I Told You So, Dahlia” world tour. It is lovely to have you on the podcast.
Lee Epstein: It’s a pleasure to be here. Part of the story is, I think, an “I told you so” story. It’s hard to believe that people didn’t see this coming. Obama is president for eight years; he gets two appointments. Trump is president for four years; he gets three appointments, and he moves the center of the court toward Brett Kavanaugh, away from the chief justice. So, yeah, I told you so. There’s a lot of predictability here, and abortion and guns—not at all surprising.
But there’s another side to this story, and that’s from the data side. If you look at the data from last term, this doesn’t look like a really socially, culturally extreme court. And that’s what’s a little perplexing about last term. Now, whether this is going to hold next term, I don’t know. But right now, there’s a side to this court that looks, kind of, standard issue Roberts court.
Oh, so this is interesting. So you’re telling me that while we were sort of asleep at the switch for a long time as the court was drifting rightward, we’re actually now getting the data wrong on the other side—that we’re overcorrecting or overreading a couple of shadow docket opinions from the summer and these dopey speeches. But that in fact, if you look at the data from last term, it’s not as bad as we now think it is, but it’s worse than we thought it was when we were asleep.
One hundred percent right. It’s almost like there’s two courts operating. There’s this, I’ll call it, Trump court, aided and abetted by Alito and Thomas. And you see that in the abortion case this summer. You saw it in the voting rights case. Although, as you know, voting rights is kind of hallmark Roberts court, well before the Trump justices got there. You see it in the fact that they took a gun case this term and so on. And the COVID religious case, that flipped when Barrett got on the court.
But then you start to look at the data. So the data show a court that was almost 50 percent unanimous in nine-person decisions. The average for the period going back to 1937 is, like, 33 percent. So you see above-average unanimity; you don’t see the 6–3 decisions that we thought there’d be a lot of, along partisan lines. If you look at 6–3 partisan split decisions, they only made up about 15 percent of argued cases.
And then look at the cases that made the front page of the New York Times. Yes, there’s a voting rights issue. Even if you take into account the emergency cases, it doesn’t look like the Democrats on the court have lost 90 percent. So there’s two stories going on here. A standard kind of moderate conservative institutionalist Roberts court and a kind of Trump court.
Cynics like me who read the raft of end-of-term pieces that made the points you’re making, that looked at the data and said, “Look, this is a 3–3–3 court, right? We have John Roberts and Amy Coney Barrett and Brett Kavanaugh in the middle. And there was an immense amount of unanimity, and there was very unpredictable splits.” And folks like me said, “The problem with the set you’re looking at is it weights every case equally. It weights the swearing cheerleader as though that’s the same as invalidating Section 2 of the Voting Rights Act. That’s got to be wrong.” And that’s what the problem is with those crunches of the 57 whatever merits case: It doesn’t weight for what is consequential. And I think it also doesn’t take into account those shadow docket cases.
And so I think there was a sense that we’ve got the set wrong and that’s why those conclusions were wrong. And I guess the last thing I would say, and fight me on this, because I think it’s really hard to prove this empirically, but even some of those 8–1, 7–2 cases—I’m thinking of Fulton, the foster care case—it may look like it’s not doing something consequential, but it’s actually changing a test and it’s changing a test in the footnote. So help me look at this. There’s a way in which the court looks like it’s doing something unanimous, but in fact, the land moved, the doctrine changed. And we certainly saw that in that COVID case you’re describing from April. How do we account for all that?
First, let me push back on the first point. And the first point is that if you only look at the important, salient cases from last term, a very different picture emerges than the standard Roberts court picture, and I’m going to push back on that. There were, I think, 11 cases that made the front page of the New York Times. So that’s one way to think this is an important case, right? We could talk about definitions, but let’s just do that. And if you look at those cases, there were—OK, so we’ve got the voting rights claim. That’s a clear loss for the Democrat side of the court. But then let’s go down the line, and I’m counting the emergency cases. Look at the 2020 election challenges, right? Look at the Trump tax records, Obamacare, the cheerleader case. This was not a total blowout for the Democratic side, which to me was a little unexpected. Think about the counterfactual, where they strike down Obamacare; they didn’t do that. And the cheerleader case, right? A win for free speech. NCAA, the student athlete case. So, I’m going to push back a little bit on that point, if you just look at salient cases, the term looks different; actually it doesn’t look that much different.
In trying to get at the doctrinal aspects, that’s, as you know, very, very hard empirically. And I think Fulton is the best example of, Yeah, the Democrats were on the winning side of that case, but what did they actually win in that case? The doctrine did move. And that’s hard for me to do with data. I think that’s hard for anyone to do with data. So I take the second point.
So if we meet in the middle and we agree there are two different stories being told right now. And one is very overheated: The court is a bunch of feral dogs gone mad, and democracy is about to crumble. You’re saying that is certainly not reflective of last term. Then my question is, how do we deal with the fact that a lot of court watchers seem to be experiencing this feeling for the first time?
This seems to be the cycle: We all start from the place that the court is fundamentally a political institution. The court likes to pretend it’s above politics. The press corps largely agrees with the court that it’s above politics. Something happens. The court behaves politically—I’m thinking of Bush v. Gore. The press corps is baffled. The public is angry, and the political scientists just stand around and say, “Ha, ha, you chumps.” And we’re definitely in one of those cycles. How do you, looking at the data, looking at the numbers, know when we’ve jumped from that first story of the court is essentially above politics into that second? How would you know when it’s the break-the-glass moment and the court really is purely partisan?
Well, looking at the data, I tend to look at the partisan vote splits in the data, so that tells me a story. I look at the voting patterns of the individual justices. I look at things like the salient cases, how are the high profile cases going? Those are the kind of indicators I look at. Straight voting, up or down, not looking at the doctrine, that tells me a story about the court too. This was a very hard term to analyze, because of these two different kinds of courts operating—this kind of socially conservative aggressive court. To me, abortion is driving a lot of the narrative. That’s what I keep seeing and reading. What if they had stayed the Texas law? Would we be in this kind of crazy partisan cycle right now?
Yeah, my strong sense is that if they had stayed it and just waited and taken this in December as the Dobbs case, and in June, came down with some apparently reasonable decision where they fudge the lines on undue burden, they could have a 57 percent approval rate this fall. I just keep saying it was this self-own, because there was an immense legitimacy cost, and I still don’t understand to what end. This is an unforced error given that it was taking on guns and abortion and probably affirmative action and religious liberty, and could have behaved in a way that would not have sent the country into orbit. One of the reasons I wanted to talk to you is if you and I agree on this that the only weapon the court has is its legitimacy. Why would you set that on fire in a big dumpster the week before the term starts?
So I think you’ve answered your question, which is, “What has driven this orbit?” And abortion is a lot of the answer as to what has driven it, the Texas abortion case, and the world would look a little different today had they not done what they did. So there’s a couple of stories to tell about it. One is a lot of my conservative, Federalist Society–type friends tell me, look, “Kavanaugh, Gorsuch, Barrett. They were put on the court to overrule Roe v. Wade.” I don’t think you think that’s going to happen. I don’t think that’s going to happen, but they were put there to do that. And this is kind of a step in that direction. So, that’s one narrative.
The other story to tell is this is really about Brett Kavanaugh. Brett Kavanaugh could have prevented this whole new cycle that you’re referring to. And what is going on in his mind? I haven’t a clue. If you look at the data, he’s normally, not always, but normally with the chief and why he didn’t join the chief here is perplexing to me. So I could tell a bunch of stories, but I’m making stuff up here about what’s going on.
In five years, we’ve gone from Anthony Kennedy as the median justice to Brett Kavanaugh as the median justice. And from where you sit, mashing the numbers, that’s a sea change.
That’s a sea change. And it’s a change in terms of the level of uncertainty. Kennedy was a little quirky as you know, but there were certain issues on which his vote was highly predictable. Give me a First Amendment case, give me a due process case, right? Kavanaugh at this point, it’s a little harder to predict. And the other point to make is we got used to a court very driven by one justice, Kennedy. And before him, O’Connor. I do think in the abortion case, Kavanaugh is pivotal. But going down the line, Kavanaugh, Gorsuch, and Barrett right now, their voting patterns are very, very close. And we haven’t seen that kind of court in a long time where there’s sort of the soft middle, and that also creates uncertainty and less predictability. It’s like the Stewart-Powell-White days, where they could jump over and form different kinds of coalitions. This is why we had some trouble analyzing this term. It makes the court a little less predictable; there’s a little more uncertainty.